Article 6(3) of the African Charter on the Rights and Welfare of the Child provides that “Every child has the right to acquire a nationality” and 6(4) requires States Parties to grant nationality to an otherwise stateless child born in their territory. These rights have been explored in detail in a General Comment of the African Committee of Experts on the Rights and Welfare of the child, adopted in April 2014. The General Comment recognises the “profoundly negative impact on respect for and fulfilment of other human rights” of statelessness and the need not only for nationality but also proof of nationality in order to be able to access rights. It highlights the importance of access to nationality in the State with which an individual has a connection and the extent to which recognition of such connections benefits both the State and the individual. Following its jurisprudence in The Institute for Human Rights and Development in Africa and the Open Society Justice Initiative (on behalf of children of Nubian Descent in Kenya) v. Kenya the ACERWC adopts a purposive reading of Article 6(3) stressing that the best interests of the child requires that children should acquire a nationality from birth and must not be made to wait until they turn 18. The ACERWC encouraged States to adopt the ‘double jus soli’ approach whereby a child born in the State one of whose parents was also born in the State acquires nationality at birth and to allow children not born in the State but who have lived there for much of their childhood to acquire nationality as well as facilitating naturalisation for children born in the State. It also highlighted as a matter of good practice the granting of nationality from birth to children born in the territory whose parents are lawfully and habitually resident there.
The African Charter on Human and Peoples’ Rights does not contain a right to a nationality. However the African Commission on Human and Peoples Rights which oversees the implementation of the Charter has found that Article 5 (which provides that “[e]very individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status”) includes the right to a nationality. In 2013 a resolution of the African Commission on Human and Peoples’ Rights (ACommHPR) reaffirmed this position (originally established in the ACommHPR’s case law) in general terms. The African Commission has since undertaken a study of nationality in Africa and produced a draft protocol to the African Charter on the Right to Nationality. This draft protocol was adopted by the African Commission in July 2015 and in July 2016 was approved by the Executive Committee of the African Union beginning the process of its adoption as a legal standard.
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa is more limited in its promotion of women’s equal right to acquire, retain and transmit nationality than the international standards, providing only that “a woman shall have the right to retain her nationality or to acquire the nationality of her husband” and “a woman and a man shall have equal rights with respect to the nationality of their children except where this is contrary to a provision in national legislation or is contrary to national security interests”. This clause permitting national law to override the principle of gender equality is unfortunate and runs counter to the general provisions on gender equality in this protocol.
African states at the Universal Periodic Review
Just over half of sub-Saharan African States reviewed in the second cycle of the Universal Periodic Review received at least one recommendation on statelessness or the right to nationality: 23 out of 45 states. There have, however, been some significant gaps – of the eight States with known or suspected stateless populations of more than 10,000 persons five did not receive any relevant recommendations. Côte d’Ivoire, for example, with the highest reported stateless population, while receiving four recommendations relating to this issue in the first UPR cycle, received none in the second. Moreover, of the nine States which discriminate against women in the ability to transmit nationality to their children, only five received recommendations on this subject. Yet, several of these states received numerous recommendations on the issue, including from other African countries, urging them to reform the nationality law.
Swaziland received as many as 7 recommendations to amend its gender discriminatory nationality law during the second UPR cycle, including from Botswana, Djibouti, and Sierra Leone (which also restricts women’s nationality rights). A number of the recommendations which were directed towards this issue explicitly raised concerns about statelessness, such as this one made to Madagascar by the United States: “reform its nationality law to ensure that all citizens have equal right to confer nationality to their children and the children born to citizen mothers are no longer at risk of statelessness”. Of the other recommendations made to African states during the second UPR cycle which are relevant to statelessness and nationality issues, most addressed accession to one or both of the UN statelessness conventions. A few also touched on other issues – for instance, Kenya made the recommendations to Namibia that it “align the provisions of the nationality law with international human rights standards so as to enable children born in the territory of Namibia whose parents are unknown to acquire nationality of Namibia”.